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September 19, 2012

Should sentencing juries receive a state's sentencing guidelines?

The question in the title of this post is prompted by this interesting story from Virginia, which is headlined "Hampton juror asks judge to lower 128-year prison sentence." Here are excerpts which discuss jury sentencing practices in Old Dominion:

A jury in March recommended that Robert Via Jr. spend the rest of his life in prison.
Their decision seemed definitive: 128 years and a day, for an armed home invasion.

But one juror is now saying that because they were forced under the law to render the sentence without guidelines, a judge should shorten the majority of Via's time behind bars.
"I believe the jury may have arrived at a different set of verdicts had we more information on Virginia's sentencing requirements and processes," the juror wrote in an Aug. 12 letter to Hampton Circuit Judge Christopher Hutton.

Those concerns highlight a larger issue in the state: Jurors do not get state sentencing guidelines, and judges rarely question jurors' recommendations.

The guidelines, implemented in 1995, were an attempt to level the sentencing field when the state ended parole.... But unlike judges, jurors don't have access to the guidelines and usually sentence above them, research shows....

Virginia is one of six states that allows jurors to recommend sentences after finding someone guilty. In most states, the jury decides guilt or innocence but the sentence is determined by the judge.

In a 2004 study published in the Vanderbilt Law Review, Nancy J. King and Rosevelt L. Noble examined jury sentences in Virginia, Kentucky and Arkansas. The authors found that juror sentences in Virginia were not consistent with those given by judges.
"Average sentences after jury trial were more severe than average sentences after bench trial or guilty plea, with many offenses showing significant differences," the authors write.

Jury sentences for defendants convicted of drug offenses averaged from 4.5 years to 14 years longer than sentences by judges, the study found.
"In Virginia, the jury lacks both information and power, and is routinely bypassed by defendants who prefer the guideline sentences that they can obtain by exercising their state constitutional right to plead guilty," the authors wrote.

Defense attorneys often warn their clients about the stakes of taking a jury trial because of the sentence disparity.
"Any time a defendant requests a trial by jury, you have to factor in the risk of a jury sentencing your client," defense attorney Tim Clancy said. "It's a huge factor in making the decision of whether to have a judge or a jury hear a client's case. It's a huge consideration."...

Criminal cases being tried by juries are rare across the state. Most cases are settled through guilty pleas or bench trials, according to the Virginia Criminal Sentencing Commission's 2011 annual report.
Only 1.5 percent of criminal cases were resolved by jury trials in 2011. Eighty-nine percent of criminal cases were adjudicated by guilty pleas and 10 percent by bench trials....

When a jury decides on a sentence, it is only a recommendation to the judge. In most cases, however, judges will impose what the jury recommends.
Defense attorney Ron Smith says that judges rarely go against what the jury wants in a criminal trial....

In 2011, judges modified 19 percent of jury sentences, according to the commission's report.
Judges can lower a jury's recommended sentence, but not raise it. Under the law a judge must impose the minimum, but can suspend all or part of the time. They can also decide to give the defendant probation.

Comments

Wasn't the whole point of Apprendi/Blakely to strengthen the jury's hand at sentencing? And am I missing something when I just have to guess that a strenthened hand would be no problem at all -- so long as the result was lower than judge-imposed sentences. But if the result is higher than judge-imposed sentences, then -- lan' sakes alive! -- the jury needs to have a collar put on it after all.

My goodness!

Posted by: Bill Otis | Sep 19, 2012 9:21:53 AM

But if the result is higher than judge-imposed sentences, then -- lan' sakes alive! -- the jury needs to have a collar put on it after all.

How could providing the jury more information--let alone giving them the same options as the judge has (such as suspending part of the sentence)--possibly be construed as a 'collar'?

Posted by: dsfan | Sep 19, 2012 9:38:28 AM

dsfan --

"How could providing the jury more information--let alone giving them the same options as the judge has (such as suspending part of the sentence)--possibly be construed as a 'collar'?"

Because right now, the jury is unconstrianed, and with guidelines, there comes an element of constraint (as we are constantly reminded right here on this forum, notwithstanding that the guidelines are now voluntary).

You know perfectly well that, if jury sentencing were, at present, more lenient than judge sentencing, the defense bar would be outraged at any suggestion that the jury be given guidelines.

It's not about "more information." It's about the same result orientation it's always been about.

Posted by: Bill Otis | Sep 19, 2012 10:08:39 AM

Because right now, the jury is unconstrianed

No, the jury has severe constraints that the judge does not, as they cannot suspend part of the sentence. If you truly wanted to reduce constraints on a jury, you would not only provide voluntary guidelines (while making it very clear that the guidelines are not mandatory--by the way, Virginia's guidelines generally have much wider bands than the federal system, for those who don't know), but give them the same power to suspend sentences in part or in full that the judge has.

You're probably right about the defense bar, but I don't care about that (and keep in mind, this article is about a juror wanting the guidelines). I care that juries are making sentencing decisions often with just plain wrong factual ideas about how the state works. Heck, it took five years, and a Virginia Supreme Court ruling, before jurors were even allowed to know about the abolition of parole.

Posted by: dsfan | Sep 19, 2012 10:41:24 AM

Moreover, Bill, you have long been a fan of guidelines for federal judges, and thus your disaffinity for guidelines here suggests that it is you --- not Apprendi/Blakely fans like CJ Roberts and Justices Scalia and Thomas --- who only care about sentencing outcomes rather than a sensible and fair sentencing process.

Posted by: Doug B. | Sep 19, 2012 11:36:11 AM

Doug --

Your premise is an oversimplification that leads you to an erroneous result. I have been (and remain) a fan of MANDATORY guidelineds for federal judges, and a vocal critic of voluntary guidelines. Since Virginia's voluntary guidelines are the ones being suggested for Virginia juries, it's consistent, and not hypocritical, for me to oppose them just as I have always opposed voluntary guidelines.

Posted by: Bill Otis | Sep 19, 2012 1:16:04 PM

dsfan --

My understanding is that Virginia juries are unconstrained in the way that matters most, to wit, that they can recommend any term of years withing the statutory maximum. That would include recommending zero years, or some vastly scaled back term. Essentially, they can recommend whatever amount of time in actual confinement they think just. But even were it otherwise, the judge is perfectly free under current law to take it easier on the defendant if he thinks some or all of the jury's recommended sentence should be suspended.

Posted by: Bill Otis | Sep 19, 2012 1:36:10 PM

Bill, this nuanced account of which kinds of guidelines you like is hard to understand in light of you "collar" phrasing in your first comment. As I understand it, you like MANDATORY guidelines as forceful "collar" to restrain how (low?) federal judges can go, but then complain about the suggestion that any kind of collar might be put on juries.

In the end, Bill, I mostly agree that most sentencing advocates care a lot more about outcomes than the process. But, of course, defense attorney's have a lawyerly obligation to seek the lowest outcome for their clients; in contrast, I have always thought prosecutors have a professional obligation to do justice and serve the broader public interest as public employees/respresentatives. This is why, Bill, I am necessarily more concerned about your (prosecutorial?) tendency as a public lawyer to favor instinctively a process likely to produce longer sentences than about a (defense-required?) instinct and tendency among some private lawyers to favor instinctively a process likely to produce shorter sentences.

Posted by: Doug B. | Sep 19, 2012 1:43:53 PM

I know of a case from a few years ago where the entire Virginia guideline sentence range, even at its upper end, was lower than the minimum statutory sentence that a jury could give. If, hypothetically, a crime carries a statutory sentence of 5-20 years, the guideline range for a defendant with no priors can be as low as 1-2½ years. So if a jury wants to be lenient, it can't go below 5 years. If a judge wants to be stern but stay within the guideline for the same offense, he gives a 5 years sentence and suspends half of it to get down to the guideline level.

We can debate whether this kind of relationship between guideline ranges and statutory sentences is appropriate and how it should be fixed. But with this kind of a system, it isn't surprising that average sentences from juries are higher than sentences from judges.

Posted by: arfarf | Sep 19, 2012 1:49:50 PM

My understanding is that Virginia juries are unconstrained in the way that matters most, to wit, that they can recommend any term of years withing the statutory maximum. That would include recommending zero years, or some vastly scaled back term. Essentially, they can recommend whatever amount of time in actual confinement they think just.

Not exactly. Virginia's felonies generally have ranges into which they have to sentence, so there is often a minimum. For very serious crimes, this doesn't generally present a problem, since the minimum is low enough that it would be incredibly rare for a jury to want to go beneath it. For example, second degree murder has a range of 5-40 years, so the jury isn't likely to have wanted to impose a sentence below the minimum anyway. So while I'd still prefer to give the jury guidelines, I don't think it's a huge deal either way in a case like that.

The problem I have arises in lower-level felonies, such as drug cases, bar fights, that sort of thing. I'll give you an example from pretty close to where I'm originally from. Fairly run-of-the-mill bar fight (http://m.roanoke.com/mapp/story.aspx?arcID=290107) where someone's jaw is broken. Even after the case, the prosecutor thought three months was appropriate. But had the case gone to a jury, the defendant would have faced a minimum of 12 months. So exercising the right to a jury trial would have exposed the defendant to a minimum sentence four times greater than what the prosecutor even asked for. You're right that the judge can reduce it by suspending time, but in practice, this is pretty rare, cases like the Huguely trial notwithstanding. See the King and Noble (great name for paper co-authors) paper for qualitative views confirming this. Or take the Virginia Sentencing Commission's own report (http://www.vcsc.virginia.gov/2011AnnualReport.pdf)--in FY2011, judges only modified 19% of sentences at all, whereas over half (51%) of jury sentences were above even the guideline maximum.

Posted by: dsfan | Sep 19, 2012 2:23:52 PM

Oops, I might be wrong about that specific example (for unlawful wounding I think they can go to whatever they want). But I'm almost certain it's right for malicious wounding, a number of drug felonies, etc. And often in ways that don't seem to conform with an ordinary sense of the seriousness of the crimes. Manslaughter, for example, is a class 5 felony, and the jury could impose anything up to 10 years (http://leg1.state.va.us/000/cod/18.2-10.HTM). But if the jury finds you wounded someone with "malice," it's a class 3 felony, and the jury has to impose 5-20, as arfarf says. It's just peculiar to me.

Posted by: dsfan | Sep 19, 2012 2:43:12 PM

Doug --

"As I understand it, you like MANDATORY guidelines as forceful "collar" to restrain how (low?) federal judges can go, but then complain about the suggestion that any kind of collar might be put on juries."

First, mandatory guidelines never restrained how low federal judges could go. Departure authority was used in about 40% of the cases, and virtually all departures were downward.

Second, the suggestion at issue in this thread is explicitly and exclusively about voluntary guidelines, which I have always opposed. I oppose them, not because they produce any given outcome (USSC statistics show sentences now are almost exactly the same, or perhaps slightly higher, than pre-Booker), but because they're misleading. They pretend to retain the rule of law in sentencing, but don't. If we're going to have discretion, let's have it, but not under the pretense that it's really rule-driven.

"I am necessarily more concerned about your (prosecutorial?) tendency as a public lawyer to favor instinctively a process likely to produce longer sentences than about a (defense-required?) instinct and tendency among some private lawyers to favor instinctively a process likely to produce shorter sentences."

But I'm not a public lawyer. I'm an adjunct professor at a private law school. I haven't been in the USAO for over 13 years.

In addition, there is nothing inherent in the process of mandatory guideline sentencing that produces longer sentences. A posteriori, it did produce longer sentences than the pre-SRA regime, but that was a contingent, not a necessary, fact.

In my view, the central, underlying reason sentences went up during the eighties and nineties was that it started to dawn on people, in both the legislative and judicial branches, and in both the state and federal governments, that prison works to reduce crime -- a fact now almost universally acknowledged.

Posted by: Bill Otis | Sep 19, 2012 3:09:45 PM

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